‘History of previous decompensation of mental health in detention environment is of concern. Indicates a high risk that detention is likely to have a detrimental impact on his mental-health. His illness is not amenable to medication given its inherent nature.’
‘His condition is not one which is amenable to treatment with medication being primarily improved by modifications to his environment.’
‘Individuals with such disorders are unable to cope for long periods with situations of detention other than for therapeutic purposes and with special adaptations to take account of their vulnerabilities. … As his mental state deteriorates and he is increasingly withdrawn and expressing evidence of low mood in the context of his developmental disorder I am of the view that detention is having a detrimental impact on his mental-health.’
‘Can remedial action be taken to minimise the risks to the detainee’s health whilst in detention? If so, what action and in what timeframe?’
‘Remedial efforts have been made in terms of caring for him off the main wing, as well as to report him to the Local Safeguarding Team, although treatment of his mental health problem of a pervasive developmental disorder is a highly specialist area.’
‘If the risks to the detainee’s health are not yet serious, are they assessed as likely to become so in a particular timeframe (ie in a matter of days or weeks, or only if detention continued for an appreciably longer period)?’
‘I would consider that the time frame for deterioration is gradual but present in the (2-3 weeks period [sc since GKG was detained]) and I am mindful of previous unexpected and rapid deteriorations during a previous custodial episode.’
‘[GKG] has been assessed as an adult at risk level 3 given the medical reports and advice received from the IRC. His medical is being closely monitored. If removal cannot be effected within a reasonable timescale or his conditions deteriorate the submission may be considered to release. This was previously considered but [GKG] could not provide a release address. Further medical information has now been received and it is deemed [GKG] should be released from detention. His health and vulnerabilities mean he cannot be released to no fixed abode therefore Schedule 10 accommodation has been requested. Once sourced it is considered [GKG] should be released from detention. Meanwhile, his conditions can be monitored in the IRC.’
‘While it is considered that [GKG] has been diagnosed with Autism Spectrum Disorder, as an EEA national, he has the ability to access public funds and seek the appropriate care from the NHS. His Rule 35 report was assessed by our independent medical advisor who did not assess that [GKG] was unable to leave the UK. There is a charity called Shelter who have ties to local authorities who may be better able to assist with sourcing accommodation for [GKG].’
‘[GKG] has been assessed as an Adult at Risk (level 3) given the medical reports and advice received from the IRC. His mental-health is being closely monitored. If removal cannot be effected within a reasonable time scale, or his conditions deteriorate, a release submission shall be considered. [GKG’s] health and vulnerabilities means he cannot be released to no fixed abode therefore Schedule 10 accommodation has been requested. Once sourced, it is considered [GKG] should be released from detention.’
‘[GKG] has been assessed as posing a high risk of harm, high risk of reoffending and high-risk of absconding. The only barrier to his removal is a signed Deportation Order. [GKG] has 14 days in which to lodge an appeal against his Decision to Make a Deportation Order. Should he fail to appeal, a signed deportation order can be obtained imminently. Therefore, it is considered that removal is achievable within a reasonable timescale and that detention is justified and proportionate.’
‘Continued detention authorised whilst schedule 10 accommodation is sourced and accepted. I am satisfied that [GKG’s] medical requirements are best served with this course of action rather than releasing to no fixed abode. Consequently detention justified.’
‘This is a challenging case. The individual is subject to deportation proceedings and he has been served with a Decision to Make a Deportation Order against which he has launched an appeal. Travel documentation is not a bar to removal but the in country appeal is a potential long-term barrier. The subject has severe mental health issues and is deemed to be an Adult at Risk Level 3. Now that the subject has launched an appeal we are faced with a long-term barrier to removal. However, in order to affect effective release we need to source an appropriate address and as yet we have been unable to resource a suitable address or engage the provisions under Schedule 10. Given the fact that deportation is proceeding and we are awaiting the dates of the appeal I am willing to authorise immigration detention for a further 14 days while we seek to secure an appropriate address to securely release.’
‘This individual remains subject to deportation proceedings and the barrier to removal remains the ongoing appeal. While we hold valid travel documentation and consider the subject’s known offending a threat to the public we are aware of the prolonged appeal and the potential impact continued detention could have on the subject’s mental health. We are continuing to pursue suitable accommodation to release the subject to and we have made progress with the CC Accommodation Team who had now agreed to source an address which is preferable to release to the street. I am advised that the case-owner will have an update on this address on 9 May so I am content to authorise immigration detention for a further 14 days while we seek to make suitable arrangements to release while the in country appeal continues.’
‘This is a challenging case. We continue to pursue deportation and note the pending in country appeal. This is balanced against the subject’s serious health issues which render him to be deemed an Adult at Risk Level 3. Given the subject’s previous conduct and ongoing health issues it is inappropriate to release him to the street. We are advised that this case is eligible for Schedule 10 accommodation and we now only wait for a suitable address to be located. Immigration detention is to be maintained for a further 14 days only while suitable arrangements to accommodate the subject are finalised.’
‘concerns have been raised about the length of time it has taken to establish a suitable bed and this has been escalated to the NHS England to investigate.’
‘The medical advice also provided is that [GKG], purely for clinical reasons, is unable to be released from detention into the community. [GKG] continues to be cared for by the IRC Mental Health Team and is current [sic] waiting for a bed at the secure unit, with whom the IRC staff are in regular contact, to become available.’
‘The situation is unchanged I am afraid to say. As discussed at this afternoon’s meeting the clinical judgement of the consultant psychiatrist attached to the centre, Bradley Hillier, remains firmly that [GKG] requires specialist treatment and MHA referral to a specific facility, Bracton Hospital in Kent. That as you know has been subject to an extremely lengthy delay. It has repeatedly being put to Dr Hillier whether another more accessible, facility might be used and each time we have received the same response that it is only this facility, Bracton, that is apparently able to provide the level of treatment and security [GKG] requires. The advice also is that he remains unfit for release. The irony of all this is of course that [GKG] has in the meantime be [sic] held in the allegedly unsuitable environment of the IRC whilst waiting for a bed at Bracton to become available. That delay has of course been unconscionable, months rather than weeks now and is, we are told, the subject of a referral to the local NHS Commissioner. What we don’t have, however, is any sort of timeframe from the NHS for moving this case on. An extraordinary situation.’
‘Update of pathway: The Bracton Centre has declined to admit as he is not unwell enough to reach their threshold. It remains the view of the clinical team that he is vulnerable with his autism spectrum disorder and cannot be safely released in the UK without a package of care. I am actively pursuing NHS England to support identification of way to resolve this. At present whilst awaiting resolution I am of the view that IRC is the most appropriate place, since transitions need to be minimised and into the nature of his illness and distress this can cause.’
‘It is clear that every effort is being made to seek alternatives to detention and I also note that, should the outcome of the UTT be received (given the hearing was on 29 October this is anticipated to be received soon), [GKG] could become removable. There is a further hearing on 4 December in relation to legal proceedings regarding detention. I agree that detention pending the outcome of the hearings, both from the High Court and UTT, and in view of the medical evidence from Dr Hillier remains proportionate and authorise continued detention.’
‘I am aware there is a presumption to release and the detention should only be maintained for a reasonable period. I note the complexities in this case and that the CC caseworkers are doing everything possible to ensure his release into an acceptable environment. He poses a significant risk if released without the required management of his mental-health. I particularly note Dr Hillier’s statement that [GKG’s] detention sees him (currently) in the ‘least bad place’
‘[GKG] provided no evidence that he was suffering from a mental disorder by nature or degree in the domain of psychiatric illness for which treatment is available at Wotton Lawn Hospital. He certainly did not to meet the admission criteria for Psychiatric Intensive Care Unit which would require an acute disturbance secondary to an acute mental disorder likely to respond to treatment in 4 weeks. Moreover, we identified no psychiatric needs that would be consistent with admission to a general adult psychiatric inpatient facility. … On the strength of our assessment of [GKG] and information from other sources, our assessment elicited no evidence that [GKG] would provide a basis for his transfer to Hospital for treatment under the provisions of Section 48 of the Mental Health Act.’
‘I think we should be releasing… but I am not sure that releasing into the community is the right thing. I would welcome Dr Hillier’s views on this proposed course of action. I would have thought releasing into a health environment would have been much more appropriate.’
‘I am aware that there is a presumption to release and that detention should only be maintained for a reasonable period of time. It is also to facilitate the removal. It is disappointing that [GKG] has not been released into the right healthcare environment. I note his UT appeal was dismissed this month and on the 25th there is a MAPPA meeting. That is some sort of progress. Bearing in mind [GKG’s] vulnerability I have no apparent choice than to authorise a further 28 days detention. I hope during that period there is real progress as to his release.’
‘[GKG] is assessed as having no mental illness, he has an autistic spectrum condition. From a Health and Social Care perspective there are no immediate needs and therefore nothing to be provided. His autism needs can be met through universal services. Dr Brad Hillier believes that there may be a need for Crisis Team support but nobody would notice until he is released. This service is, however, available to anyone, it doesn’t matter where you are from. This should not be a barrier to discharge.’
‘If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under regulation 23(6)(b), that person may be detained under the authority of the Secretary of State pending a decision whether or not to remove the person other that regulation, and paragraphs 17 to 18A of Schedule 2 to the 1971 Act [theImmigration Act 1971 ] apply in relation to the detention of such person as these paragraphs apply in relation to a person who may be detained under paragraph 16 of that schedule.’
‘The decision maker should answer the following questions to inform their decision: • does the individual need to be detained in order to effect removal? See Detention – general guidance. ◦ if the answer is no, they should not be detained ◦ if the answer is yes, how long is the detention likely to last • if the individual is identified as an adult at risk, what is the likely risk of harm to them if detained after the period identified as necessary to effect removal given the level of evidence available in support of them being at risk? If the evidence suggests that the length of detention is likely to have a harmful effect on the individual, they should not be detained unless there are public interest concerns which outweigh any risk identified. For this purpose, the public interest in the deportation of foreign national offenders (FNOs) will generally outweigh risk of harm to the detainee. However what may be a reasonable period for detention (in line with the Hardial Singh principle (Singh, R v Governor of Durham Prison [1983] EWHC 1 (QB)) will likely be shortened where there is evidence that detention will cause a risk of serious harm. Where the detainee is not an FNO, detention for a period that is likely to cause serious harm will not usually be justified.’
‘An individual will be regarded as being an adult at risk if: … those considering all reviewing detention are aware of medical or other professional evidence which indicates that an individual is suffering from a condition, or has experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention, whether or not the individual has highlighted this themselves … The nature and severity of the condition, as well as the available evidence of a condition or traumatic event, can change over time. Therefore, decisionmakers should use the most up-to-date information each time the decision is made about placing someone in detention, or continuing that detention. Before referring individuals to a particular immigration removal centre, decision makers must confirm that a particular centre has adequate healthcare facilities to accommodate that individual’s needs. Immigration removal centres do not provide inpatient facilities and can provide primary healthcare only.’
‘In all cases in which detention of an individual is being considered, the decision maker deciding on detention should first assess whether there is a realistic prospect of removal within a reasonable timescale. If there is not, the individual should not be detained. In cases in which there is such a prospect, and in which the individual is determined to be at risk in terms of this policy, the decision-makers should carry out an assessment of the balance between the risk factors and the immigration factors. This should involve weighing of the evidence-based level of risk to the individual against: • how quickly removal is likely to be affected • the compliance history of the individual • any public protection concerns An individual should be detained only if the immigration factors outweigh the risk factors such as to displace the presumption that individuals at risk should not be detained. This will be a highly case specific consideration taking account of all immigration factors. In each case, however, there must primarily be a careful assessment of the likely length of detention necessary and this should be considered against the likely impact on the health of the individual if detained for the period identified given the evidence available of the risk to the individual. The likely length of detention prior to removal should be quantified in days, weeks or months and this predicted timeframe should be recorded when making detention decisions.’
‘Where on the basis of professional and/or official documentary evidence, detention is likely to lead to a risk of harm to the individual if detained at the period identified as necessary to affect removal, they should be considered for detention only if one of the following applies: • removal has been set for a date in the immediate future, there are no barriers to removal, and escort and any other appropriate arrangements are (or will be) in place to ensure the safe management of the individual’s return and the individual has not complied with voluntary or insured return • the individual presents a significant public protection concern, or if they have been subject to a four-year plus custodial sentence, or there is a serious relevanct national security issue or the individual presents the current public protection concern.’
‘The above is intended as a guide rather than a prescriptive template for dealing with cases. Each case must be decided on its own merits, taking into account the full range of factors, on the basis of the available evidence.’
‘(i) The policy refers to “those suffering serious mental illness which cannot be satisfactorily managed within detention”. The focus is therefore upon management of the serious mental illness. Such illnesses by their nature can, without deteriorating as an illness, be variable in symptomatology over time; and clinicians can, quite reasonably, differ in their assessment of diagnosis, prognosis and the severity of the symptoms of which complaint. (ii) …when the Secretary of State is assessing whether a particular serious mental illness can be satisfactorily managed in a particular patient in an IRC, so long as his approach to the assessment is lawful he necessarily has a wide margin of discretion. (iii) In making that assessment, although the Secretary of State cannot abdicate his statutory and public law responsibilities, where conscientious enquiries have been made about the health of the detainee in the context of Chapter 55.10 of the EIG [the predecessor of the AAR Policy], then he is generally entitled to rely on the opinion of the clinicians or, if opinion is not unanimous, to rely upon any one of the opinions insofar as it appears sincerely and reasonably held. (iv) Whether an illness has deteriorated, or whether there is a risk that it will deteriorate, will clearly be an important fact in this assessment – indeed, I accept that it may usually be critical – but I do not accept that it will be necessarily decisive… (v) …As Beatson LJ said inVCat [65], “periods of calm are not necessarily indicative… of a mental health condition being satisfactorily managed…”; but, in my view, the opposite is also true. A conclusion that an illness cannot be satisfactorily managed in detention cannot be drawn from merely the fact that there is an increase in severity of symptoms. It may be that that increase is just a manifestation of a variable condition; or that a change in medication will reduce the symptoms again, and such a change would be well within the scope of satisfactory management of the condition. The crucial question is a broader one, namely, as put by Dyson LJ in M at [39], “whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering” (i.e. suffering that would not have to be endured if the individual was being treated out of detention). (vi) However, the Secretary of State cannot shut his eyes to the variations in a person’s condition as reflecting his illness by failing to monitor the individual’s condition thereby risking a deterioration to a point where the illness cannot be managed. Therefore, at least on initial detention and at the regular detention reviews, there is an obligation on the Secretary of State to be alert to signs of (e.g.) deterioration that indicate the illness is not being satisfactorily managed (R (BA) v Secretaryof State for the Home Department[2011] EWHC 2748 (Admin) at [183]-[184] as approved inVCat [52]). Wherever a detainee has a serious mental illness, Chapter 55.10 is engaged to that extent.’
‘(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to affect removal.’
‘The use of immigration detention to protect a person from themselves, however laudable, is an improper purpose. The purpose of the power of immigration detention, as established in Hardial Singh and subsequent authorities, is the purpose of removal.’
‘I accept that, if it is shown that a person’s detention has caused or contributed to his suffering mental illness, this is a factor which in principle should be taken into account in assessing the reasonableness of the length of the detention. But the critical question in such cases is whether the facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering.’
‘Under principle (iii), mere uncertainty is insufficient: the state is only required to release a detainee when there is no real prospect of removal within a reasonable time (R (Muqtaar) v Secretary of State for the Home Department[2012] EWCA Civ 1270 ;[2013] 1 WLR 649 (“Muqtaar”) at [36]-[38]). In any challenge, it is for the court itself to determine what is a reasonable period for the purposes of principle (i) or (iii), and whether it has been exceeded (R (A) v Secretary of State for the Home Department[2007] EWCA Civ 804 at [71]-[75]; and LE (Jamaica) at [29(ii)]. However, it must do so without recourse to hindsight (Fardous at [42]). There is a considerable area of judgement in relation to what a reasonable period is in all the circumstances, and, on appeal, this court will not interfere unless it is shown that the conclusion of the court below is inconsistent with the facts as found, or based on an error of law, or not sensibly open to the court on the fact as found (Muqtaar at [46]-[48]). It will consequently be rare for this court to interfere on appeal (see MH at [73] per Longmore LJ; and Muqtaar at [46]).’
‘In my view, even where the Secretary of State is satisfied that, because of the requirement for treatment in hospital, there is no real prospect of removing the detained person within a reasonable time, the Secretary of State is not bound immediately to release the person into the community to fend for himself and/or in the hope that he might (voluntarily) attend hospital or do something to provoke an order under section 2 or 3 of the MHA 1983. The person is still liable to be removed; and, in the circumstances of this case, in my view it is open to the Secretary of State to keep a person detained and safe for a reasonable time pending transfer to hospital (initially under section 48 or by some other mechanism) even in circumstances in which, if he were to remain in an IRC without the prospect of such transfer, the Hardial Singh principles might be breached. That does not seem to me to be a wrong or abusive use of the power to detain under the Immigration Acts; and the argument that it is wrong or an abuse seems to me to cast the Hardial Singh principles too rigidly.’
‘101. Mr Brown submits that the receipt of an independent medical report should be considered as swiftly as aRule 35report, i.e. within two days after its arrival. Therefore, EO does not accept that the relevant date when his detention became unlawful was, as the Secretary of State accepts, 17 April. On this latter point, I accept that on the facts of this case Dr Toon’s report should have been considered as part of the review process which culminated on17 April 2012 . Medico-legal reports of this nature require a good deal more time to digest than aRule 35report. As in this case, they are frequently accompanied by submissions of a wider scope and other evidence. Case workers cannot be expected to drop everything to prioritise this work to the possible detriment of other detainees. Like most public servants, they are under considerable pressure. I note that in AM the Court of Appeal considered that a fortnight to have considered the report from Miss Krajl, and conclude that it amounted to independent evidence of torture was appropriate. Such a time frame might well be reasonable when the monthly review is not imminent; but what is reasonable depends upon the circumstances.’
‘I am prepared to authorise 28 days more detention, but during that period release to Schedule 10 accommodation or a secure NHS facility must occur (assuming removal doesn’t)’